3—In applying this test, all reasonable doubt should be resolved in favor of the book.
The courts, to repeat, apply the simple test of literature as distinct from the mere portrayal of the obscene. And in getting at whether a thing is literature, they are not disposed to substitute their judgment for that of others who speak of the book in the spirit of sincerity; nor are they disposed to tip the scales, even if people of that sort differ in their conclusions. “We have quoted”, says Andrews, J., in the latest case, “estimates of the book as showing the manner in which it affects different minds. The conflict among the members of this court itself points a finger at the dangers of a censorship entrusted to men of one profession, of like education and similar surroundings.” (Halsey v. N. Y. Society, 234 N. Y. 1, 6.) Likewise, the opinions in St. Hubert’s Guild v. Quinn (64 Misc. 336), and Matter of Worthington (30 N. Y. Supp. 363; 24 L. R. A. 110) refer to various criticisms of the books involved, as do the opinions of Magistrate Simpson and Magistrate Oberwager in the very recent (and still unreported) cases of People v. Seltzer and People v. Salsberg and Boni & Liveright. In all of those cases the criticisms were contained in book or magazine form, which were available to the Court. In the present case the various criticisms of the book here involved are not available in such form, and consequently we are submitting herewith copies of letters and newspaper clippings containing the opinions of many competent critics concerning that book, which we respectfully ask this Court to consider in rendering its decision upon this motion.
4—In judging the book by the standards above indicated, it must be read as a whole, and, on that basis, it must be upheld even though it may contain portions which would not stand the test if isolated.
From what has already been said another conclusion follows:—The book is to be judged not by isolated passages in it, but by the whole book. Peculiarly is this true in the present case, where the book at large is indicted, not parts of it, as was the case when complaint was made in Special Sessions, but all of it without reference to any particular part. That, when a book is indicted as a whole, no judgment can be passed upon it which is not based upon a reading of the whole, with the necessary test of correlation which this entails, would seem manifest on its face. But in view of certain expressions which judicially fell in the federal case of U. S. v. Bennett (16 Blatchf. 338; Fed. Cs. No. 14,571), it is just as well to refer to the fact that, both in England and in this State, the test is the whole book, not isolated parts to which it may please the prosecutor to point an accusing finger.
Halsey v. N. Y. Society (234 N. Y. 1);
Fitzpatrick’s Case (31 How. St. Tr. 1170, 1186).
St. Hubert’s Guild v. Quinn (64 Misc. 336).
“The judgment of the court below is based upon a few passages in each of these works, and these passages have been held to be of such a character as to invalidate the contract upon which the action has been brought. These few passages furnish no criterion by which the legality of the consideration of the contract can be determined. That some of these passages, judged by the standard of our day, mar rather than enhance the value of these books can be admitted without condemning the contract for the sale of the books as illegal. The same criticism has been directed against many of the classics of antiquity and against the works of some of our greatest writers from Chaucer to Walt Whitman, without being regarded as sufficient to invalidate contracts for the sale or publication of their works.”
St. Hubert Guild v. Quinn (64 Misc. 336, 339).
“No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible. The book, however, must be considered broadly as a whole.”